S.I. No. 444/2022 - European Union (Electronic Communications Code) Regulations 2022 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile Statutory InstrumentsIonstraimí Reachtúla 2022 S.I. No. 444/2022 - European Union (Electronic Communications Code) Regulations 2022 S.I. No. 444/2022 - European Union (Electronic Communications Code) Regulations 2022 AmendmentsLeasuithe Download PDF Íoslódáil PDF Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of 9th September, 2022.
CONTENTS Regulation
Part 1
PRELIMINARY AND GENERAL
Section 1
1.Citation and commencement
Section 2
2.Interpretation
Section 3
3.Regulatory authority
Part 2
TASKS AND OBJECTIVES OF REGULATOR AND OTHER COMPETENT AUTHORITIES
Section 4
4.Objectives of Regulator
Section 5
5.National regulatory and other competent authorities
Part 3
GENERAL AUTHORISATION AND RIGHTS OF USE
CHAPTER 1 – GENERAL PART
Section 6
6.General authorisation of electronic communications networks and services
Section 7
7.Register of authorised undertakings
Section 8
8.Conditions attached to general authorisation and specific obligations
Section 9
9.Conditions attached to rights of use for radio spectrum
Section 10
10.Conditions attached to rights of use for numbering resources
Section 11
11.Declarations to facilitate exercise of rights to install facilities and rights of interconnection
CHAPTER 2 – GENERAL AUTHORISATION RIGHTS AND OBLIGATIONS
Section 12
12.Minimum list of rights derived from general authorisation
Section 13
13.Accounting separation and financial reports
CHAPTER 3 – AMENDMENT AND WITHDRAWAL
Section 14
14.Amendment of rights and obligations
Section 15
15.Restriction or withdrawal of rights
Part 4
INTERNAL MARKET PROCEDURES AND COORDINATION
CHAPTER 1 – RADIO SPECTRUM COORDINATION
Section 16
16.Radio spectrum coordination among Member States
CHAPTER 2
Section 17
17.Consolidating internal market for electronic communications
Section 18
18.Procedure for consistent application of remedies
CHAPTER 3 – CONSISTENT RADIO SPECTRUM ASSIGNMENT
Section 19
19.Peer review process
Section 20
20.Harmonised assignment of radio spectrum
Section 21
21.Joint authorisation process to grant individual rights of use for radio spectrum
CHAPTER 4 – HARMONISATION PROCEDURES
Section 22
22.Harmonisation procedures
Section 23
23.Standardisation
Part 5
MARKET ENTRY AND DEPLOYMENT
CHAPTER 1 - FEES
Section 24
24.Fees for rights of use for radio spectrum and rights to install facilities
CHAPTER 2 – ACCESS TO LAND
Section 25
25.Co-location and sharing of network elements and associated facilities for providers of electronic communications networks
Section 26
26.Publication of information
Part 6
ACCESS TO RADIO SPECTRUM AND RELATED PROVISIONS
CHAPTER 1 - AUTHORISATIONS
Section 27
27.Management of radio spectrum
Section 28
28.Authorisation of use of radio spectrum
Section 29
29.Conditions attached to individual rights of use for radio spectrum
CHAPTER 2 – RIGHTS OF USE
Section 30
30.Granting of individual rights of use for radio spectrum
Section 31
31.Duration of rights
Section 32
32.Renewal of individual rights of use for harmonised radio spectrum
Section 33
33.Transfer or lease of individual rights of use for radio spectrum
Section 34
34.Competition
CHAPTER 3 - PROCEDURES
Section 35
35.Coordinated timing of assignments
Section 36
36.Procedure for limiting number of rights of use to be granted for radio spectrum
Section 37
37.Publication of specification of conditions
Part 7
DEPLOYMENT AND USE OF WIRELESS NETWORK EQUIPMENT
Section 38
38.Access to radio local area networks
Section 39
39.Deployment and operation of small-area wireless access points
Part 8
ACCESS AND INTERCONNECTION - RIGHTS, OBLIGATIONS AND REMEDIES
CHAPTER 1 – GENERAL PROVISIONS, ACCESS PRINCIPLES
Section 40
40.General framework for access and interconnection
Section 41
41.Rights and obligations of undertakings
CHAPTER 2 – ACCESS AND INTERCONNECTION
Section 42
42.Powers and responsibilities with regard to access and interconnection
Section 43
43.Conditional access systems and other facilities
CHAPTER 3 – MARKET ANALYSIS AND SIGNIFICANT MARKET POWER
Section 44
44.Definitions – Chapter 3
Section 45
45.Undertakings with significant market power
Section 46
46.Procedure for identification and definition of markets
Section 47
47.Procedure for identification of transnational markets
Section 48
48.Procedure for identification of transnational demand
Section 49
49.Market analysis procedure
CHAPTER 4 - ACCESS REMEDIES IMPOSED ON UNDERTAKINGS WITH SIGNIFICANT MARKET POWER
Section 50
50.Imposition, amendment or withdrawal of obligations
Section 51
51.Obligation of transparency
Section 52
52.Obligations of non-discrimination
Section 53
53.Obligations of accounting separation
Section 54
54.Access to civil engineering
Section 55
55.Obligations of access to, and use of, specific network elements and associated facilities
Section 56
56.Price control and cost accounting obligations
Section 57
57.Termination rates
Section 58
58.Regulatory treatment of new very-high-capacity network elements
Section 59
59.Functional separation
Section 60
60.Voluntary separation by vertically integrated undertaking
Section 61
61.Commitments procedure
Section 62
62.Wholesale–only undertakings
Section 63
63.Migration from legacy infrastructure
CHAPTER 5 – REGULATORY CONTROL OF RETAIL SERVICES
Section 64
64.Regulatory control of retail services
CHAPTER 6 – PUBLICATION OF INFORMATION – ACCESS OBLIGATIONS
Section 65
65.Publication of notice of obligations and access to information
CHAPTER 7 – NOTIFICATION AND MONITORING – UNDERTAKINGS WITH SIGNIFICANT MARKET POWER
Section 66
66.Notification of undertakings designated as having significant market power
CHAPTER 8 – DISPUTE RESOLUTION BETWEEN UNDERTAKINGS
Section 67
67.Dispute resolution between undertakings
Section 68
68.Resolution of cross-border disputes
Part 9
UNIVERSAL SERVICE OBLIGATIONS
Section 69
69.Definition (Part 9)
Section 70
70.Affordable universal service
Section 71
71.Provision of affordable universal service
Section 72
72.Availability of universal service and designation
Section 73
73.Status of existing universal service
Section 74
74.Control of expenditure
Section 75
75.Cost of universal service obligations
Section 76
76.Financing of universal service obligations and transparency
Section 77
77.Additional mandatory services
Section 78
78.Notification of universal service obligations
Part 10
ACCESS TO NUMBERS AND SERVICES, AND RELATED PROVISIONS
Section 79
79.Numbering resources
Section 80
80.Procedure for granting rights of use for numbering resources
Section 81
81.Fees for rights of use for numbering resources
Section 82
82.Missing children and child helpline hotlines
Section 83
83.Access to numbers and services
Part 11
END-USER RIGHTS
Section 84
84.Exemption of certain microenterprises
Section 85
85.Non-discrimination
Section 86
86.Fundamental rights safeguard
Section 87
87.Information requirements for contracts
Section 88
88.Transparency, comparison of offers and publication of information
Section 89
89.Contract duration and termination
Section 90
90.Provider switching and number portability
Section 91
91.Bundled offers
Section 92
92.Availability of services
Section 93
93.Emergency communications and single European emergency number
Section 94
94.Equivalent access and choice for end-users with disabilities
Section 95
95.Directory enquiry services
Section 96
96.Interoperability of car radio and consumer radio receivers and consumer digital television equipment
Section 97
97.Provision of additional facilities
Part 12
PROVISION AND PUBLICATION OF INFORMATION, SURVEYS AND CONSULTATION MECHANISM
Section 98
98.Information request to undertakings
Section 99
99.Information required with regard to general authorisation, rights of use and specific obligations
Section 100
100.Geographical surveys of network deployments
Section 101
101.Consultation and transparency mechanism
Section 102
102.Consultation of interested parties
Section 103
103.Notices regarding imposition of obligations
Part 13
ENFORCEMENT
Section 104
104.Directions
Section 105
105.Compliance monitoring and obligations
Section 106
106.Service of determinations, directions and notifications
Section 107
107.Prosecution of offences
Section 108
108.Hybrid penalties
Section 109
109.Offences by bodies corporate
Section 110
110.Suspension or withdrawal of authorisation, rights of use for radio spectrum or rights of use for numbers
Part 14
AMENDMENT OF ACT OF 2002, CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL ARRANGEMENTS
Section 111
111.Amendments – Act of 2002
Section 112
112.Consequential amendments
Section 113
113.Transitional arrangements Schedule 1 List of conditions which may be attached to general authorisations, rights of use for radio spectrum and rights of use for numbering resources Schedule 2 Criteria for determination of wholesale voice termination rates Schedule 3 Criteria for assessing co-investment offers Schedule 4 Minimum set of services which adequate broadband internet access service in accordance with Regulation 70(2) shall be capable of supporting Schedule 5 Description of facilities and services referred to in Regulation 74 (Control of expenditure), Regulation 97 (Additional facilities) and Regulation 90 (Provider switching and number portability) Schedule 6 Calculating net cost, if any, of universal service obligations and establishing any compensation or sharing mechanism in accordance with Regulations 75 and 76 Schedule 7 Information requirements to be provided in accordance with Regulation 87 (Information requirements for contracts) Schedule 8 Information to be published in accordance with Regulation 88 (Transparency and publication of information) I, Eamon Ryan, Minister for the Environment, Climate and Communications, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20181 and giving full effect to Commission Implementing Regulation (EU) 2019/2243 of 17 December 20192 , Commission Delegated Regulation (EU) 2021/654 of 18 December 20203 , hereby make the following regulations:
Part 1
PRELIMINARY AND GENERAL Citation and commencement 1. (1) These Regulations may be cited as the European Union (Electronic Communications Code) Regulations 2022.
(2)These Regulations come into operation on such day as the Minister appoints and publishes in Iris Oifigiúil.
Interpretation 2. (1) In these Regulations – “access” means the making available of facilities or services to another undertaking, under defined conditions, either on an exclusive or a non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services. Among other things, it covers: (a) access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); (b) access to physical infrastructure including buildings, ducts and masts; (c) access to relevant software systems including operational support systems; (d) access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; (e) access to number translation or systems offering equivalent functionality; (f) access to fixed and mobile networks, in particular for roaming; (g) access to conditional access systems for digital television services and access to virtual network services; “Access Regulations” means European Communities (Electronic Communications Networks and Services)(Access) Regulations 2011 ( S.I. No. 334 of 2011 ); “Act of 1926” means Wireless Telegraphy Act 1926 (No. 45 of 1926); “Act of 1983” means Postal and Telecommunications Services Act 1983 (No. 24 of 1983); “Act of 2000” means Planning and Development Act 2000 (No. 30 of 2000); “Act of 2002” means Communications Regulation Act 2002 (No. 20 of 2002); “Act of 2009” means Broadcasting Act 2009 (No. 18 of 2009); “application programming interface” or “API” means the software interface between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services; “associated facilities” means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets; “associated service” means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service;
“Authorisation Regulations” means European Communities (Electronic Communications Networks and Services)(Authorisation) Regulations 2011 ( S.I. No. 335 of 2011 ); “authorised undertaking” means an undertaking deemed to be authorised under Regulation 6; “BEREC” means the Body of European Regulators for Electronic Communications; “call” means a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication; “caller location information” means, in a public mobile network, the data processed, derived from network infrastructure or handsets, indicating the geographic position of an end-user’s mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point; “CEPT” means the European Conference of Postal and Telecommunications Administrations; “conditional access system” means any technical measure, authentication system or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation; “consumer” means any individual who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business, craft or profession; “data protection law” means the requirements of the Data Protection Act 2018 (No. 7 of 2018) and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20164 ; “Directive” means Directive 2018/1972 of the European Parliament and of the Council of 11 December 20181 establishing the European Electronic Communications Code; “durable medium” has the same meaning as in Regulation 2 of the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 ( S.I. No. 484 of 2013 ); “ECAS operator” means the person who operates an emergency call answering service in accordance with a contract entered into under section 58B of the Act of 2002; “electronic communications service” means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services: (a) ‘internet access service’ within the meaning of Article 2 of Regulation (EU) 2015/21205 ; (b) interpersonal communications service; and (c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting;
“electronic communications network” means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed; “electronic programme guide” means any electronic means of providing information to members of the public in relation to the schedule of programme material the subject of any broadcasting service and which electronic means is an integral part of the distribution and reception system by which the broadcasting service is provided; “emergency communication” means communication by means of interpersonal communications services between an end-user and the PSAP with the goal to request and receive emergency relief from emergency services; “emergency service” means the Garda Síochána, a fire brigade, ambulance service, the Irish Coast Guard or a civil emergency service; “end-user” means a user not providing public electronic communications networks or publicly available electronic communications services; “enhanced digital television equipment” means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services; “European Commission” means the Commission of the European Union; “Framework Regulations” means European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2011 ( S.I. No. 333 of 2011 ); “general authorisation” means an authorisation for an undertaking to provide an electronic communications network or service under and in accordance with Regulation 6; “geographic number” means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point; “harmful interference” means interference which endangers the functioning of a radio navigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable international, Union or national regulations;
“harmonised radio spectrum” means radio spectrum for which harmonised conditions relating to its availability and efficient use have been established by way of technical implementing measures in accordance with Article 4 of the Radio Spectrum Decision; “hybrid offence” means an offence punishable under Regulation 108; “interconnection” means a specific type of access implemented between public network operators by means of the physical and logical linking of public electronic communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking where such services are provided by the parties involved or other parties who have access to the network; “International Telecommunication Union Radio Regulations” means the decisions of the World Radiocommunication Conferences, including all appendices, resolutions, recommendations and International Telecommunication Union Radiocommunication Sector recommendations incorporated by reference; “interpersonal communications service” means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s) and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service; “ITU” means the International Telecommunications Union; “licence”, unless it is otherwise indicated, means a licence granted under section 5 of the Act of 1926 to keep and have possession of apparatus for wireless telegraphy for the provision of an electronic communications network or service and which grants a right of use for radio spectrum; “local loop” means the physical path used by electronic communications signals connecting the network termination point to a distribution frame or equivalent facility in the fixed public electronic communications network; “medium-sized enterprise” means a company that is not a microenterprise or small enterprise, that has fewer than 250 employees and an annual turnover below €50 million or balance sheet below €43 million; “microenterprise” means a company with fewer than 10 employees and an annual turnover or balance sheet below €2 million; “Minister” means the Minister for the Environment, Climate and Communications;
“MMS” means a Multimedia Messaging Service which sends messages that include multimedia content between mobile or fixed numbers assigned in accordance with a national numbering plan; “most appropriate PSAP” means a PSAP designated as such by the Minister to cover emergency communications from a certain area or for emergency communications of a certain type, but in the absence of such a designation means the ‘ECAS operator’ as referred to in section 58A of the Act of 2002; “national numbering plan” means the national numbering plan administered by the Regulator under section 12 of the Act of 2002; “national regulatory authority” in relation to another Member State, means the body or bodies charged by the other Member State with any of the regulatory tasks assigned in the Directive; “network termination point” means the physical point at which an end-user is provided with access to a public electronic communications network, and which, in the case of networks involving switching or routing, is identified by means of a specific network address, which may be linked to an end-user’s number or name; “non-geographic number” means a number from the national numbering plan that is not a geographic number, such as mobile, freephone and premium-rate numbers; “not-for-profit organisation” means a body, organisation or association — (a) that provides its services on a not-for-profit basis, (b) that has been properly constituted in accordance with the law of the State or another Member State, and (c) whose objectives, as specified in the documents establishing the body, organisation or association concerned, are in the public interest; “NRA” means National Roads Authority; “number” includes a character and a combination of numbers or characters or both; “number-based interpersonal communications service” means an interpersonal communications service which connects with publicly assigned numbering resources, namely, a number or numbers in a national or international numbering plan, or which enables communication with a number or numbers in a national or international numbering plan; “number-independent interpersonal communications service” means an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in a national or international numbering plan, or which does not enable communication with a number or numbers in a national or international numbering plan; “operator” means an undertaking providing or authorised to provide a public electronic communications network or an associated facility;
“other competent authority”, in relation to another competent authority in the State means a local authority, the NRA, a road authority, the Competition and Consumer Protection Commission or the Minister, as the case may be; “Privacy and Electronic Communications Regulations” means European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications) Regulations 2011 ( S.I. No. 336 of 2011 ); “provision of an electronic communications network” means the establishment, operation, control or making available of such a network; “public authority” has the meaning assigned to it in the Local Government Act 2001 (No. 37 of 2001); “public electronic communications network” means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points; “public pay telephone” means a telephone available to the general public for the use of which the means of payment may include coins, credit cards, debit cards or prepayment cards, including cards for use with dialling codes; “public safety answering point” or “PSAP” means a physical location where an emergency communication is first received under the responsibility of a public authority or a private organisation recognised by the Member State; “radio local area network” or “RLAN” means a low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum; “radio spectrum allocation” means the designation of a given radio spectrum band for use by one or more types of radio communications services, where appropriate, under specified conditions; “Radio Spectrum Decision” means Decision No. 676/2002/EC of the European Parliament and of the Council of 7 March 20026 ; “Recommendation 1999/519/EC” means Council Recommendation 1999/519/EC of 12 July 19997 ; “Regulation (EU) 2015/2120” means Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 20155 ; “Regulator” means Commission for Communications Regulation; “regulatory decision” means a decision of the Regulator that requires a person to do, or refrain from doing something, including the making of a requirement, the giving of a direction, the making of a determination, designation or specification; “rights to install facilities” means –
(a) a consent under section 53 of the Act of 2002, or (b) a licence under section 254(1) of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure; “road authority” has the meaning assigned to it by section 2 (as amended by section 11 of the Roads Act 2007 (No. 34 of 2007)) of the Roads Act 1993 (No. 14 of 1993); “RSC” means the Radio Spectrum Committee established pursuant to Article 3(1) of the Radio Spectrum Decision; “RSPG” means the Radio Spectrum Policy Group established by Commission Decision No. 622/2002/EC of 26 July 20028 ; “security of networks and services” means the ability of electronic communications networks and services to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of those networks and services, of stored or transmitted or processed data, or of the related services offered by, or accessible via, those electronic communications networks or services; “shared use of radio spectrum” means access by two or more users to use the same radio spectrum bands under a defined sharing arrangement, authorised on the basis of a general authorisation, individual rights of use for radio spectrum or a combination thereof, including regulatory approaches such as licensed shared access aiming to facilitate the shared use of a radio spectrum band, subject to a binding agreement of all parties involved, in accordance with sharing rules as included in their rights of use for radio spectrum in order to guarantee to all users predictable and reliable sharing arrangements, and without prejudice to the application of competition law; “small-area wireless access point” means low-power wireless network access equipment of a small size operating within a small range, using licenced radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks regardless of the underlying network topology, be it mobile or fixed; “small enterprise” means a company that is not a microenterprise and that has fewer than 50 employees and an annual turnover or balance sheet below €10 million; “SMS” means a Short Message Service text message, composed principally of alphabetical or numerical characters, capable of being sent between mobile or fixed numbers assigned in accordance with national numbering plans;
“specific obligations” means obligations that may be imposed by the Regulator on an undertaking providing electronic communications networks and services under Regulation 42(1), (14) and (15) and Regulations 43, 50 and 64 or on those designated to provide universal service under these Regulations; “subscriber” means any natural person or legal entity who or which is party to a contract with a provider of publicly available electronic communications services for the supply of such services; “terminal equipment” means: (a) equipment directly or indirectly connected to the interface of a public telecommunications network to send, process or receive information; in either case (direct or indirect), the connection may be made by wire, optical fibre or electromagnetically; a connection is indirect if equipment is placed between the terminal and the interface of the network; (b) satellite earth station equipment; “total conversation service” means a multimedia real time conversation service that provides bidirectional symmetric real time transfer of motion video, real time text and voice between users in two or more locations; “transnational markets” means markets identified by the European Commission in accordance with Article 65 of the Directive, which cover the European Union or a substantial part thereof located in more than one Member State; “undertaking” means a person engaged or intending to engage in the provision of electronic communications networks or services or associated facilities; “Universal Service Obligation” means an obligation imposed on an undertaking designated under Regulation 71(5), 72(3) or 73(2), or a measure imposed under Regulation 71(3); “Universal Service Regulations” means European Communities (Electronic Communications Networks and Services)(Universal Service and Users’ Rights) Regulations 2011 ( S.I. No. 337 of 2011 ); “user” means a natural or legal person using or requesting a publicly available electronic communications service; “very-high-capacity network” means either an electronic communications network which consists wholly of optical fibre elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation; network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point;
“voice communications service” means a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international numbering plan; “wireless broadband networks and services” means wireless broadband electronic communications networks and services.
(2)A word or expression that is used in these Regulations and that is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations that it has in the Directive.
(3)A reference in any enactment or Regulations to the Framework Regulations, the Access Regulations, the Authorisation Regulations or to the Universal Service Regulations, is to be construed as a reference to these Regulations.
Regulatory authority 3. The Regulator is the national regulatory authority in the State for the purposes of these Regulations and the Directive.
Part 2
TASKS AND OBJECTIVES OF REGULATOR AND OTHER COMPETENT AUTHORITIES Objectives of Regulator, etc.
4.(1) The Regulator and other competent authorities, in carrying out their regulatory tasks specified in these Regulations insofar as it gives effect to the Directive, shall take all reasonable measures which are necessary and proportionate for achieving the objectives set out in paragraph (3).
(2)The Regulator and other competent authorities shall contribute within their competences to ensuring the implementation of policies aimed at the promotion of freedom of expression and information, cultural and linguistic diversity, as well as media pluralism.
(3)In the context of its tasks, the Regulator and other competent authorities shall pursue each of the following general objectives which are not listed in order of priority — (a) promote connectivity and access to, and take-up of, very-high-capacity networks, including fixed, mobile and wireless networks, by all consumers and businesses in the State; (b) promote competition in the provision of electronic communications networks and associated facilities, including efficient infrastructure-based competition, and in the provision of electronic communications services and associated services; (c) contribute to the development of the internal market by removing remaining obstacles to, and facilitating convergent conditions for, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the European Union, by developing common rules and predictable regulatory approaches, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity; (d) promote the interests of the consumers and businesses in the State, by ensuring connectivity and the widespread availability and take-up of very-high-capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities.
(4)The Regulator shall — (a) having regard to its objectives under section 12 of the Act of 2002 and its tasks under these Regulations, actively support the goals of BEREC of promoting greater regulatory coordination and consistency, (b) take the utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting decisions for markets in the State, (c) provide assistance to and cooperate with the European Commission upon its request, in accordance with Article 3(3) of the Directive, and (d) engage and cooperate with the national regulatory and competent authorities of other Member States, the ITU, the RSPG, the RSC and the European Commission and Council upon their request, in the strategic planning, coordination and harmonisation of the use of radio spectrum in the European Union and in accordance with the aims and considerations referred to in Article 4(1), (2) and (3) of the Directive.
(5)The Regulator and other competent authorities, in pursuit of the policy objectives referred to in paragraph (3), shall apply impartial, objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia — (a) promoting regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods and through cooperation with each other, with BEREC, with the RSPG and with the European Commission, (b) ensuring that, in similar circumstances, there is no discrimination in the treatment of providers of electronic communications networks and services, (c) applying European Union law in a technologically neutral fashion, to the extent that this is consistent with the achievement of the objectives set out in paragraph (3), (d) promoting efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, while ensuring that competition in the market and the principle of non-discrimination are preserved, (e) taking due account of the variety of conditions relating to infrastructure, competition, the circumstances of end-users and, in particular, consumers that exist in the various geographic areas within the State, including local infrastructure managed by individuals on a not-for-profit basis, and (f) imposing ex-ante regulatory obligations only to the extent necessary to secure effective and sustainable competition in the interest of end-users where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as that condition is fulfilled.
National regulatory and other competent authorities 5. (1) The Regulator shall be responsible for the following specific tasks — (a) implementing ex ante market regulation, including the imposition of access and interconnection obligations; (b) ensuring the resolution of disputes between undertakings; (c) carrying out radio spectrum management and decisions; (d) contributing to the protection of end-user rights in the electronic communications sector, in coordination, where relevant, with other competent authorities; (e) assessing and monitoring closely market-shaping and competition issues regarding open internet access; (f) assessing the unfair burden and calculating the net cost of the provision of universal service; (g) ensuring number portability between providers; (h) performing any other tasks reserved to the Regulator in accordance with these Regulations.
(2)The Regulator and other competent authorities shall — (a) where appropriate, consult and cooperate with each other and with relevant national and competent authorities in other Member States entrusted with the implementation of competition law or consumer law, on matters of common interest, and (b) where necessary, enter into cooperative arrangements with each other and with relevant national regulatory and competent authorities in other Member States, to foster regulatory cooperation.
(3)The Regulator and other competent authorities, shall exercise their powers under these Regulations and the Directive impartially, transparently and in a timely manner.
(4)For the purposes of contributing to BEREC’s tasks, the Regulator shall be entitled to collect necessary data and other information from market participants.
(5)The Regulator and other competent authorities shall provide each other with the information necessary for the application of these Regulations.
(6)Subject to the Freedom of Information Act 2014 , in respect of the information exchanged under paragraph (5), the receiving authority shall ensure the same level of confidentiality as that of the originating authority.
(7)The Regulator and other competent authorities shall ensure compliance of their processing of personal data with data protection law.
Part 3
GENERAL AUTHORISATION AND RIGHTS OF USE
CHAPTER 1
General part General authorisation of electronic communications networks and services 6. (1) Subject to paragraph (4), any undertaking that intends to provide an electronic communications network or an electronic communications service other than a number-independent interpersonal communications service shall, before doing so, notify the Regulator of its intention to provide such a network or service.
(2)(a) Upon receipt by the Regulator of a notification under paragraph (1), the undertaking concerned is deemed to be authorised to provide an electronic communications network or electronic communications service or, as appropriate, both, subject to such conditions as may be specified by the Regulator under Regulation 8, 9 or 10 or rights of use referred to in Regulations 28 and 80. (b) The Regulator may decide to prevent an undertaking from providing electronic communications networks or services only where this is necessary for the reasons set out in Article 52(1) TFEU. Such a decision shall be by way of direction to the undertaking concerned. Any such limitation to the freedom to provide electronic communications networks and services shall be duly reasoned and shall be notified to the European Commission.
(3)The Regulator may make a determination specifying an electronic communications network or electronic communications service of a particular class or description as being a network or service in relation to which an undertaking is not subject to the requirements of paragraph (1).
(4)Where the Regulator determines under paragraph (3) that an undertaking is not required to notify under paragraph (1), that undertaking is deemed to be authorised under this Regulation.
(5)A notification under paragraph (1) shall be in such form as the Regulator may, from time to time, determine and shall contain the following information — (a) the name of the provider concerned, (b) the provider’s legal status, including in the case of a body corporate, the company form and registration number, (c) the geographical address of the provider’s main establishment in the Union, if any, and, where applicable, if different, its registered office in the State, and the geographical address of any secondary branch of the provider in a Member State, (d) the provider’s website address, where applicable, associated with the provision of electronic communications networks or services, (e) names, addresses and contact numbers of relevant contact persons, (f) a short description of the network or services intended to be provided, (g) the Member State concerned, and (h) the estimated date of commencement of the relevant activity.
(6)The Regulator shall, by electronic means, forward each notification received in accordance with paragraph (1) to BEREC without undue delay.
(7)An undertaking shall notify the Regulator of any changes to the information supplied under paragraph (1) in relation to the matters referred to in paragraph (5)(a) to (e) within 14 days of such change and in relation to the matters referred to in paragraph (5)(f) and (g) before the commencement of the implementation of the change related to the relevant activity.
(8)An undertaking that fails to notify the Regulator in accordance with paragraph (1) or (7) commits a hybrid offence.
(9)An undertaking that fails to comply with a direction under paragraph (2)(b) commits an offence and is liable on summary conviction to a class A fine.
(10)A reference in any enactment to a person licensed under section 111 of the Act of 1983 is to be construed as a reference to an undertaking deemed to be authorised under these Regulations.
Register of authorised undertakings 7. (1) The register of authorised undertakings established under Regulation 6 of the Authorisation Regulations continues in being and information contained in any notification under Regulation 6 as the Regulator considers appropriate, other than information which the Regulator reasonably considers confidential, shall be entered in the register established and maintained under this paragraph.
(2)The Regulator may, as occasion requires, amend or delete an entry in the register.
(3)Members of the public may inspect the register free of charge at all reasonable times and may take copies of, or extracts from, entries in the register.
(4)In any proceedings a certificate bearing the seal of the Regulator, stating that the register shows that on the date or during the period specified in the certificate the name of the undertaking identified by the certificate was not entered in the register, is admissible as evidence of the fact that an undertaking identified by the certificate did not notify the Regulator in accordance with Regulation 6(1) of its intention to provide a network or service before that date or during that period.
(5)A document purporting to be a certificate under paragraph (4) is deemed to be such a certificate unless the contrary is shown.
Conditions attached to general authorisation and specific obligations 8. (1) The Regulator shall specify conditions to be attached to a general authorisation for the provision of electronic communications networks or services only as are listed in Parts A, B and C of Schedule 1. The Regulator may specify that certain conditions do not apply to undertakings of such class or type as may be specified by the Regulator.
(2)Any attachment of conditions to the general authorisation or non-application of conditions to undertakings of such class or type as may be specified by the Regulator under paragraph (1) shall be non-discriminatory, proportionate and transparent.
(3)An authorised undertaking shall comply with the conditions attaching to the general authorisation applicable to it.
(4)The Regulator shall not attach as a condition to the general authorisation any specific obligations that it may impose on an undertaking nor any conditions which are applicable to undertakings by virtue of other law. Specific obligations which may be imposed on undertakings providing electronic communications networks and services under Regulation 42(1), (14) or (15) or Regulation 43, 50 or 64 or on those designated to provide universal service under these Regulations, shall be legally separate from the rights and obligations under the general authorisation.
(5)The criteria and procedures for imposing any specific obligations referred to in paragraph (4) shall be referred to by the Regulator in the specification of conditions referred to in paragraph (1).
(6)The Regulator shall ensure that where a requirement is specified as a condition of a licence such a requirement shall not be specified as a condition of a general authorisation in respect of the networks or services concerned.
(7)An undertaking that fails to comply with any conditions attached to its general authorisation commits a hybrid offence.
(8)In proceedings for an offence under paragraph (7) it is a defence for the person charged to show that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.
Conditions attached to rights of use for radio spectrum 9. (1) Notwithstanding section 5 of the Act of 1926 but subject to any regulations made under section 6 of that Act, where the Regulator specifies conditions to be attached to rights of use for radio spectrum, it may only attach such conditions as are listed in Part D of Schedule 1. The Regulator may specify that certain conditions do not apply to undertakings of such class or type as may be determined by the Regulator from time to time.
(2)Any — (a) attachment of conditions under paragraph (1), or (b) non-application under paragraph (1) of conditions to undertakings of a class or type as may be determined by the Regulator, to rights of use for radio spectrum shall be non-discriminatory, proportionate and transparent and shall be in accordance with Regulation 27.
(3)An undertaking shall comply with the conditions attaching to rights of use for radio spectrum applicable to it.
(4)The Regulator shall ensure that where a requirement is specified as a condition of a right of use for radio spectrum such a requirement shall not be specified as a condition of the general authorisation in respect of the right of use concerned.
(5)Conditions attached by the Regulator to rights of use for radio spectrum shall ensure the effective and efficient use of such rights and be in accordance with Regulations 27 and 33.
(6)An undertaking that fails to comply with a condition that the Regulator has attached to rights of use for radio spectrum in accordance with paragraph (1) commits a hybrid offence.
(7)In proceedings for an offence under paragraph (6) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
Conditions attached to rights of use for numbering resources 10. (1) The Regulator shall specify conditions to be attached to a right of use for numbering resources, only as are listed in Part E of Schedule 1. The Regulator may decide that certain conditions do not apply to undertakings of such class or type as may be determined by the Regulator.
(2)Any attachment or non-application of conditions under paragraph (1) to a right of use for numbering resources shall be non-discriminatory, proportionate and transparent.
(3)An undertaking shall comply with the conditions attaching to rights of use for numbering resources applicable to it.
(4)The Regulator shall ensure that where a requirement is specified as a condition of a right of use for numbering resources such a requirement shall not be specified as a condition of the general authorisation in respect of the right of use concerned.
(5)An undertaking that fails to comply with a condition that the Regulator has attached to the undertaking’s rights of use for numbering resources in accordance with paragraph (1) commits a hybrid offence.
(6)In proceedings for an offence under paragraph (5) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
Declarations to facilitate exercise of rights to install facilities and rights of interconnection 11. (1) The Regulator shall, within one week of the receipt by it of a request from any authorised undertaking, issue to that undertaking, in such form as the Regulator may from time to time determine, a standardised declaration — (a) confirming, where applicable, that the undertaking has submitted a notification under Regulation 6(1), and (b) detailing under what circumstances any undertaking has the right to— (i) apply for rights to install facilities, (ii) negotiate interconnection, and (iii) obtain access or interconnection, in order to facilitate the exercise of those rights.
(2)Where it considers it appropriate to do so, the Regulator may issue such declaration as an automatic reply upon receipt of a notification under Regulation 6(1).
CHAPTER 2
General authorisation rights and obligations Minimum list of rights derived from general authorisation 12. (1) An authorised undertaking may — (a) subject to Regulations 8, 9 and 10, provide the electronic communications networks or services as described in a notification under Regulation 6(1) or (7) or where a notification is not required as described in a determination referred to in Regulation 6(3), (b) apply for rights to install facilities, (c) use, subject to Regulations 8 and 9, 28 and 36, radio spectrum in relation to electronic communications networks and services, and (d) have their application for the necessary rights of use for numbering resources considered in accordance with Regulation 80.
(2)Where an authorised undertaking is providing an electronic communications network or service to the public, it has the right — (a) under the conditions of and in accordance with these Regulations and the Directive, to negotiate interconnection with and, where applicable, obtain access to or interconnection from another undertaking deemed to be authorised in the State or in another Member State to provide a publicly available electronic communications network or service, and (b) to be given an opportunity by the Regulator to be designated under Regulation 72(3) or 73(2) to carry out obligations referred to in those Regulations.
Accounting separation and financial reports 13. (1) An undertaking providing a public electronic communications network or a publicly available electronic communications service that is also engaged in an activity other than the provision of such network or service on the basis of special or exclusive rights for the provision of that activity, whether in the State or in another Member State, shall — (a) keep separate accounts audited in accordance with generally accepted auditing practices for the activities associated with the provision of that network or service, to the extent that would be required if those activities were carried out by one or more legally independent entities in order to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to such activities including an itemised breakdown of fixed assets and structural costs, or (b) have structural separation for the activities associated with the provision of electronic communications networks or services.
(2)Where an undertaking providing a public electronic communications network or a publicly available electronic communications service is not subject to the Companies Act 2014 and does not satisfy the small and medium sized enterprise criteria of European Union law accounting rules, it shall ensure that — (a) annual accounts are drawn up, submitted to independent audit and published, and (b) such audit is carried out in accordance with generally accepted auditing practices.
(3)Paragraph (2) shall also apply to the separate accounts required under subparagraph (a) of paragraph (1).
(4)An undertaking that fails to comply with the requirements of paragraph (1) or (2) commits a hybrid offence.
CHAPTER 3
Amendment and withdrawal Amendment of rights and obligations 14. (1) The Regulator may amend the rights, conditions and procedures concerning the general authorisation, rights of use for radio spectrum or rights of use for numbering resources provided that any such amendment may only be made in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio spectrum or for numbering resources. The Regulator shall notify the holder of the authorisation or the rights of use of any decision to make the amendment.
(2)The NRA or a road authority may amend the conditions of a consent under section 53 of the Act of 2002 provided that such amendments may only be made in objectively justified cases and in a proportionate manner.
(3)A local authority may amend the conditions of a licence under section 254 of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure provided that such amendment may only be made in objectively justified cases and in a proportionate manner.
(4)Except where the proposed amendments are minor in nature and have been agreed with the holder of a general authorisation, a right of use for radio spectrum, a right of use for numbering resources, a consent referred to in paragraph (2) or a licence referred to in paragraph (3), before making any amendment under this Regulation, the Regulator, the NRA, a road authority or a local authority, as the case may be, shall — (a) give notice, in such manner as it considers appropriate, of its intention to make the amendment and invite interested parties, including users and consumers, to make representations on the proposed amendment within such period as may be specified in the notice but not being, except in exceptional circumstances, less than 28 days from the date of the notice, and (b) have regard to any representations made to it under subparagraph (a).
(5)Amendments made in accordance with this Regulation shall be published by the Regulator, the NRA, a road authority or a local authority as appropriate, together with the reasons therefor.
Restriction or withdrawal of rights 15. (1) The Regulator shall not restrict or withdraw rights of use for radio spectrum or for numbering resources before the expiry of the period for which they were granted, except where justified, and, where applicable, in accordance with Schedule 1, and to relevant national provisions regarding compensation for the withdrawal of rights. The Regulator shall notify the holder of the rights of use of any decision to restrict or withdraw the rights.
(2)In line with the need to ensure the effective and efficient use of radio spectrum, or the implementation of the technical implementing measures adopted under Article 4 of the Radio Spectrum Decision, the Regulator may restrict or withdraw rights of use for radio spectrum, including the rights referred to in Regulation 31.
(3)The Regulator shall establish clearly defined procedures in advance for the restriction or withdrawal of rights of use in accordance with this Regulation and any restriction or withdrawal of rights shall follow the established procedures and be in accordance with the principles of proportionality and non-discrimination.
(4)Where the Regulator restricts or withdraws rights of use in accordance with this Regulation, the holders of the rights may, where appropriate, be compensated in accordance with law.
(5)A modification in the use of radio spectrum as a result of the application of any of the obligations under Regulation 27(3) to (8) shall not alone constitute grounds to justify the withdrawal of a right of use for radio spectrum.
(6)Where the Regulator intends to restrict or withdraw rights under the general authorisation or individual rights of use for radio spectrum or for numbering resources without the consent of the holder of the rights, it shall consult with interested parties in accordance with Regulation 101.
Part 4
INTERNAL MARKET PROCEDURES AND COORDINATION
CHAPTER 1
Radio spectrum coordination Radio spectrum coordination among Member States 16. (1) Without prejudice to obligations under international law and relevant international agreements such as the International Telecommunications Union Radio Regulations and the ITU Radio Regional Agreements, the Regulator shall take all necessary measures, in accordance with these Regulations, to ensure that the use of radio spectrum is organised in a way that no other Member State is prevented from allowing on its territory the use of harmonised radio spectrum in accordance with European Union law, especially due to cross-border harmful interference between Member States.
(2)The Regulator, in carrying out the tasks assigned to it under these Regulations, shall cooperate with national regulatory authorities in other Member States and, where appropriate, through the RSPG, in the cross-border coordination of the use of radio spectrum in order to — (a) ensure compliance with paragraph (1), and (b) resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Member States, as well as with third countries, which prevent Member States from using the harmonised radio spectrum in their territory.
(3)In order to ensure compliance with paragraph (1), the Regulator, having notified the Minister, may request the RSPG to use its good offices to address any problem or dispute in relation to cross-border coordination or cross-border harmful interference.
(4)Where the actions referred to in paragraph (2) or (3) have not resolved the problem or dispute, the Regulator may, having notified the Minister, request the European Commission to adopt a decision in accordance with Article 28(4) of the Directive to resolve cross-border harmful interference which prevents use of the harmonised radio spectrum in the State.
(5)This Regulation is without prejudice to the Act of 1926.
CHAPTER 2
Consolidating internal market for electronic communications 17. (1) In this Regulation, “measure” means a decision, designation, determination, requirement, specification or other act of an equivalent effect made by the Regulator under these Regulations, other than a determination under Regulation 67 or 68, and a case falling within paragraph (9).
(2)In carrying out its tasks under these Regulations the Regulator shall, taking the utmost account of its objectives under section 12 of the Act of 2002 and Regulation 4, contribute to the development of the internal market by working with national regulatory authorities in other Member States, BEREC and the European Commission in a transparent manner to ensure the consistent application of the Directive.
(3)For the purpose of paragraph (2), the Regulator shall, in particular, work with the European Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the market.
(4)Except where otherwise provided in recommendations or guidelines adopted by the European Commission under Article 34 of the Directive, upon completion of the public consultation, if required under Regulation 101, where the Regulator intends to take a measure which — (a) falls within the scope of Regulation 42, 46, 49, 50 or 64, and (b) would affect trade between Member States, the Regulator shall publish the draft measure and communicate it to the European Commission, BEREC and the national regulatory authorities in other Member States at the same time, stating the reasons for the measure, in accordance with Regulation 98(12) to (14).
(5)Where a draft measure referred to in paragraph (4) aims to — (a) define a relevant market which is different from any defined in a Recommendation adopted in accordance with Article 64(1) of the Directive, or (b) designate an undertaking as having, either individually or jointly with others, significant market power under Regulation 49(6), (7) or (8), and it would affect trade between Member States, and the European Commission has indicated to the Regulator that it considers the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law and, in particular, the objectives referred to in Regulation 4, the draft measure shall not be adopted for a further 2 months.
(6)Where the European Commission has adopted a decision in accordance with point (a) of the first subparagraph of Article 32(6) of the Directive requiring the Regulator to withdraw a draft measure, the Regulator shall, within 6 months of the date of the decision of the European Commission — (a) withdraw the draft measure, or (b) amend it, undertake a public consultation in accordance with the procedures referred to in Regulation 101, and notify the amended draft measure to the European Commission in accordance with the procedure set out in paragraph (4).
(7)The Regulator shall take the utmost account of any comments of the European Commission, BEREC and a national regulatory authority in another Member State and may, except in cases covered by paragraph (5) and subparagraph (a) of paragraph (6), adopt the resulting draft measure and, where it does so adopt the draft measure, shall communicate it to the European Commission.
(8)The Regulator shall communicate to the European Commission and BEREC all adopted final measures which fall within the scope of subparagraphs (a) and (b) of paragraph (4).
(9)Where the Regulator considers that there are exceptional circumstances justifying an urgent need to act in order to safeguard competition and protect the interests of users it may, notwithstanding the procedures set out in paragraphs (4) and (5), immediately adopt proportionate measures on a provisional basis.
(10)Where the Regulator acts in accordance with paragraph (9), it shall without delay communicate the measures concerned, with full reasons for their adoption, to the European Commission, to BEREC and to the national regulatory authorities in other Member States.
(11)A decision by the Regulator to render a measure referred to in paragraph (9) permanent or extend the time for which it is applicable is subject to paragraphs (4) and (5).
(12)The Regulator may withdraw a draft measure at any time.
Procedure for consistent application of remedies 18. (1) Where — (a) a draft measure referred to in Regulation 17(4) aims to impose, amend or withdraw an obligation on an undertaking in application of Regulation 42 or 49 in conjunction with Regulations 51 to 58 and Regulation 64, and (b) the European Commission has, within the period of one month specified in Article 32(3) of the Directive, notified the Regulator that it considers that the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law, then the draft measure shall not be adopted by the Regulator for a further three months following the notification referred to in subparagraph (b) from the European Commission.
(2)In the absence of a notification referred to in paragraph (1)(b), the Regulator may adopt the draft measure taking the utmost account of any comments made by the European Commission, BEREC or a national regulatory authority in another Member State.
(3)Within the three-month period referred to in paragraph (1), the Regulator shall cooperate closely with the European Commission and BEREC to identify the most appropriate and effective measure, having regard to its objectives under section 12 of the Act of 2002 and Regulation 4, whilst taking due account of the views of market participants and the need to ensure the development of consistent regulatory practice.
(4)Before the end of the three-month period referred to in paragraph (1), the Regulator may — (a) amend or withdraw its draft measure taking the utmost account of the notification from the European Commission referred to in paragraph (1) and the opinion of BEREC issued in accordance with Article 33(3) and (4) of the Directive, or (b) maintain its draft measure.
(5)Within one month of the European Commission issuing a recommendation in accordance with point (a) of Article 33(5) of the Directive or such extended period allowed by the European Commission, lifting its reservations in accordance with point (b) of Article 33(5), the Regulator shall communicate to the European Commission and BEREC the adopted final measure.
(6)Where the Regulator decides not to amend or withdraw the draft measure on the basis of the recommendation of the European Commission issued in accordance with point (a) of Article 33(5) of the Directive, the Regulator shall provide reasons.
(7)The Regulator shall withdraw a draft measure where the European Commission takes a decision under Article 33(5)(c) requiring it to withdraw such measure.
(8)The Regulator may withdraw the proposed draft measure at any stage of the procedure set out in this Regulation.
CHAPTER 3
Consistent radio spectrum assignment Peer review process 19. (1) Where the Regulator intends to undertake a selection procedure in accordance with Regulation 36(2) and (3) in relation to radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with the Radio Spectrum Decision in order to enable its use for wireless broadband networks and services, it shall, pursuant to Regulation 101, inform the RSPG about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Regulation 36(2) and (3) and indicate whether and when it is to request the RSPG to convene a Peer Review Forum in accordance with Article 35 of the Directive.
(2)For the purposes of paragraph (1), the Regulator shall inform the RSPG about a draft measure at the moment of its publication.
(3)During a Peer Review Forum convened, or reconvened by the RSPG, whether on its own initiative or following a request from the Regulator, the Regulator shall provide an explanation on how the draft measure — (a) promotes the development of the internal market, the cross-border provision of services, as well as competition, and maximises the benefits for the consumer, and overall achieves the objectives set in Regulations 4, 27, 28 and 29, as well as in the Radio Spectrum Decision and Decision No. 243/2012/EU of the European Parliament and of the Council of 14 March 20129 , (b) ensures effective and efficient use of radio spectrum, and (c) ensures stable and predictable investment conditions for existing and prospective radio spectrum users when deploying networks for the provision of electronic communications services which rely on radio spectrum.
(4)The Regulator may request the RSPG to adopt a report on how a draft measure achieves the objectives provided for in paragraph (3), reflecting the views exchanged in the Peer Review Forum.
(5)Following a Peer Review Forum, the Regulator may request the RSPG to adopt an opinion on the draft measure.
Harmonised assignment of radio spectrum 20. (1) When granting a right of use for radio spectrum in relation to which — (a) the harmonised usage of the radio spectrum involved in accordance with any international agreements or European Union rules, (b) any relevant access conditions and procedures under any international agreements or European Union rules, or (c) any selection procedure in accordance with international agreements or European Union rules, apply, the Regulator shall grant the right of use for such radio spectrum in accordance therewith and shall not impose any further conditions, additional criteria or procedures which would restrict, alter or delay the grant of the right of use concerned provided that all conditions which may be specified by the Regulator to be complied with by the holder of the right of use in the State have been satisfied.
Joint authorisation process to grant individual rights of use for radio spectrum 21. (1) The Regulator may, taking into account any interest expressed by market participants, cooperate with the competent authorities of two or several Member States, and with the RSPG, by jointly establishing the common aspects of an authorisation process and, where appropriate, also jointly conducting the selection process to grant individual rights of use for radio spectrum.
(2)When designing the joint authorisation process in accordance with paragraph (1), the Regulator shall take into consideration the following criteria: (a) the individual national authorisation processes shall be initiated and implemented by the competent authorities or national regulatory authorities in accordance with a jointly agreed schedule; (b) it shall provide, where appropriate, for common conditions and procedures for the selection and granting of individual rights of use for radio spectrum among the Member States concerned; (c) it shall provide, where appropriate, for common or comparable conditions to be attached to the individual rights of use for radio spectrum among the Member States concerned, inter alia allowing users to be assigned similar radio spectrum blocks; (d) it shall be open at any time to other Member States until the joint authorisation process has been conducted.
(3)Where, in spite of the interest expressed by market participants, the Regulator does not act jointly to establish the common aspects of an authorisation process, it shall inform those market participants of the reasons for not doing so.
CHAPTER 4
Harmonisation procedures Harmonisation procedures 22. (1) The Regulator and other competent authorities shall, in carrying out their tasks under these Regulations, take the utmost account of any recommendations of the European Commission adopted under Article 38(1) of the Directive.
(2)Where the Regulator or other competent authority chooses not to follow any such recommendation, it shall inform the European Commission giving the reasons for its position and shall so inform the Minister.
Standardisation 23. (1) A provider of electronic communications networks, electronic communications services, associated facilities or associated services is encouraged to use the non-compulsory standards or specifications drawn up and published by the European Commission in accordance with Article 39 of the Directive for the provision of any or all of the following — (a) services, (b) technical interfaces, or (c) network functions, to the extent strictly necessary to ensure interoperability of services, end-to-end connectivity, facilitation of provider switching and portability of numbers and identifiers, and to improve freedom of choice for users.
(2)In the absence of publication of standards or specifications in accordance with Article 39(1) of the Directive, a provider is encouraged to implement standards or specifications adopted by the European standardisation organisations.
(3)In the absence of such standards or specifications, the Regulator shall encourage the implementation of international standards or recommendations adopted by the ITU, CEPT, the International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC).
(4)Any standards or specifications referred to in this Regulation shall not prevent access as may be required under the Directive, where feasible.
(5)The Regulator may publish such guidance or advice as it considers appropriate for the purposes of this Regulation.
(6)This Regulation does not apply in respect of any of the essential requirements, interface specifications or harmonised standards to which the European Union (Radio Equipment) Regulations 2017 ( S.I. No. 248 of 2017 ) apply.
Part 5
MARKET ENTRY AND DEPLOYMENT
CHAPTER 1
Fees Fees for rights of use for radio spectrum and rights to install facilities 24. (1) The Regulator may, subject to sections 13 and 37 of the Act of 2002, impose fees for rights of use for radio spectrum, which reflect the need to ensure the optimal use of that radio spectrum. Where the Regulator intends to impose such fees, the Regulator shall publish on the website of the Regulator the proposal and allow any person affected by the proposal 28 days to make comments. The Regulator shall consider the comments and, if it considers it appropriate, consult with the person making them.
(2)The Regulator shall ensure that any such fees referred to in paragraph (1) are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives of the Regulator as set out in section 12 of the Act of 2002 and the general objectives of the Directive and these Regulations.
(3)With respect to rights of use for radio spectrum, the Regulator shall seek to ensure that applicable fees are set at a level which ensures efficient assignment and use of radio spectrum by: (a) setting reserve prices as minimum fees for rights of use for radio spectrum by having regard to the value of those rights in their possible alternative uses; (b) taking into account costs entailed by conditions attached to those rights; and (c) applying, to the extent possible, payment arrangements linked to the actual availability for use of the radio spectrum.
(4)When establishing fees for rights of use for radio spectrum, the Regulator shall take account of the mechanism provided for under paragraphs (2) to (9) of Regulation 31.
(5)A charge imposed by the NRA or a road authority for a consent under section 53 of the Act of 2002 — (a) may reflect the need to ensure the optimal use of the relevant road, but (b) shall be objectively justified, transparent, non-discriminatory and proportionate in relation to its intended purpose and shall take into account, the general objectives of the Directive and of these Regulations.
(6)Any fees imposed under this Regulation by the Regulator, the NRA or by a road authority shall be published on the website of the Regulator and in such other manner as the Regulator may decide.
CHAPTER 2
Access to land Co-location and sharing of network elements and associated facilities for providers of electronic communications networks 25. (1) Following a request to do so by an operator, the Regulator shall, subject to paragraph (7), make a decision whether or not to impose obligations on an operator who holds rights to install facilities, in relation to co-location or sharing of the network elements or associated facilities installed on that basis, where it is necessary to do so in order to — (a) protect the environment, (b) protect public health, (c) protect public security, or (d) meet objectives of the statutory planning system in the State.
(2)Obligations imposed under paragraph (1) shall be limited to the specific areas where co-location or sharing is necessary for the purpose of the objectives referred to in that paragraph and may include obligations to share network elements or associated facilities installed and sharing of property, including land, buildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, ducts, conduits, manholes, cabinets or measures facilitating the coordination of public works.
(3)An operator may only make a request under paragraph (1) having taken reasonable steps to reach an agreement on co-location or sharing of the network elements and associated facilities with the operator who holds the right mentioned in paragraph (1).
(4)Before making a request for the purpose of paragraph (1), the operator shall — (a) in the case of a consent under section 53 of the Act of 2002, obtain and furnish to the Regulator an opinion from a road authority or the NRA that the proposed obligations of co-location or sharing of the network elements or associated facilities would protect the environment, public health or public security or meet town and country planning objectives, or (b) in the case of a licence under section 254 of the Act of 2000, provide the Regulator with — (i) a copy of the relevant licence, which must include a condition permitting the co-location or sharing of network elements or facilities sought to be imposed, or (ii) in the absence of such a copy, a statement from the local authority which granted the licence, that the condition referred to in subparagraph (i) is satisfied.
The Regulator may also consult with such other authority as it considers appropriate.
(5)An opinion required to be obtained under paragraph (4)(a) shall be provided by the authority concerned without undue delay.
(6)A decision under paragraph (1) may be made by the Regulator only after an appropriate period of public consultation as may be specified by the Regulator during which all interested parties shall be given an opportunity to express their views. The decision shall be notified to the interested parties that expressed views and the road authority, local authority or the NRA, as appropriate.
(7)With regard to any request made to the Regulator for a decision in accordance with paragraph (1), the Regulator may, having carried out a preliminary examination of the matter, decline to do so, giving reasons for the decision to the parties concerned, where it considers that — (a) the request for a decision is trivial or vexatious, or (b) the person making the request has not taken reasonable steps to reach an agreement on co-location or sharing of the network elements and associated facilities in accordance with paragraph (3).
(8)The Regulator shall make a decision regarding whether or not to impose co-location or sharing of the network elements or associated facilities on an operator who holds rights mentioned in paragraph (1) in accordance with procedures established and maintained by it and the procedures shall be made available, on a request being made for that purpose, to interested parties free of charge.
(9)In making a decision under paragraph (1) the Regulator may impose conditions including, without limitation — (a) conformity with the relevant standards relating to establishment, operation, maintenance and repair of electronic communications infrastructure and physical infrastructure, (b) compliance with essential requirements or the maintenance of the quality of electronic communications services or both, or (c) the apportionment of the costs of facility or property sharing and of civil works coordination, and the Regulator shall notify, in writing, the parties concerned of the reasons for such conditions.
(10)The Regulator shall, for the purposes of this Regulation — (a) coordinate the process provided for, (b) act as a single information point, and (c) set down rules for the apportioning of the costs of facility or property sharing and of civil works coordination.
(11)A decision imposing an obligation in accordance with this Regulation shall be made in an objective, transparent, non-discriminatory and proportionate manner.
(12)The Regulator and the authorities referred to in paragraph (4) shall consult as appropriate and cooperate with each other for the purposes of this regulation.
Publication of information 26. (1) The Regulator shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations, rights of use and rights to install facilities is published and kept up to date in an appropriate manner in order to provide easy access to that information for all interested parties.
(2)The Regulator shall make all reasonable efforts, having regard to the costs involved, to create a user-friendly overview of information regarding procedures and conditions relating to rights to install facilities in order to facilitate applications for such rights.
Part 6
ACCESS TO RADIO SPECTRUM AND RELATED PROVISIONS
CHAPTER 1
Authorisations Management of radio spectrum 27. (1) The Regulator shall, subject to any directions issued by the Minister under section 13 of the Act of 2002 and having regard to its objectives under section 12 of the Act of 2002, Regulation 4 and Article 4 of the Directive, ensure — (a) the effective management of radio spectrum for electronic communications networks and services, (b) that the allocation of, the issuing of general authorisations in respect of, and the granting of individual rights of use for radio spectrum for electronic communications networks and services are based on objective, transparent, pro-competitive, non-discriminatory and proportionate criteria, and (c) that harmonisation of the use of radio spectrum by electronic communications networks and services across the European Union is promoted, consistent with the need to ensure its effective and efficient use and in pursuit of benefits for the consumer such as competition, economies of scale and interoperability of networks and services, having regard to all decisions and measures adopted by the European Commission in accordance with the Radio Spectrum Decision, inter alia, by: (i) pursuing wireless broadband coverage of the State and its population at high quality and speed, as well as coverage of major national and European transport paths, including trans-European transport network as referred to in Regulation (EU) No. 1315/2013 of the European Parliament and of the Council of 11 December 201310 ; (ii) facilitating the rapid development in the Union of new wireless communications technologies and applications, including, where appropriate, in a cross-sectoral approach; (iii) ensuring predictability and consistency in the granting, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments; (iv) ensuring the prevention of cross-border or national harmful interference in accordance with Regulations 16 and 28 respectively, and taking appropriate pre-emptive and remedial measures to that end; (v) promoting the shared use of radio spectrum between similar or different uses of radio spectrum in accordance with competition law; (vi) applying the most appropriate and least onerous authorisation system possible in accordance with Regulation 28 in such a way as to maximise flexibility, sharing and efficiency in the use of radio spectrum; (vii) applying rules for the granting, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are clearly and transparently laid down in order to guarantee regulatory certainty, consistency and predictability;
(viii) pursuing consistency and predictability throughout the Union regarding the way the use of radio spectrum is authorised in protecting public health taking into account Recommendation 1999/519/EC.
(2)In the case of a national or regional lack of market demand for the use of a band in the harmonised radio spectrum, the Regulator in consultation with the Minister, may allow an alternative use of all or part of that band, including the existing use, in accordance with paragraphs (3) to (8), provided that: (a) the finding of a lack of market demand for the use of such a band is based on a public consultation in accordance with Regulation 101, including a forward-looking assessment of market demand; (b) such alternative use does not prevent or hinder the availability or the use of such a band in other Member States; and (c) the Regulator takes due account of the long-term availability or use of such a band in the European Union and the economies of scale for equipment resulting from using the harmonised radio spectrum in the European Union.
Any decision to allow alternative use on an exceptional basis shall be subject to a regular review by the Regulator and shall in any event be reviewed promptly upon a duly justified request by a prospective user to the Regulator for use of the band in accordance with the technical implementing measure. The Regulator, having notified the Minister, shall inform the European Commission and the other Member States of the decision taken, together with the reasons therefor, as well as of the outcome of any review.
(3)Without prejudice to paragraph (4), the Regulator shall ensure that all types of technology used for the provision of electronic communications networks or services may be used in the radio spectrum declared available for electronic communications services in the Radio Frequency Plan published under section 35 of the Act of 2002 in accordance with European Union law.
(4)Notwithstanding paragraph (3), the Regulator may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where this is necessary to — (a) avoid harmful interference, (b) protect public health against electromagnetic fields taking utmost account of Recommendation 1999/519/EC, (c) ensure technical quality of service, (d) ensure maximisation of radio spectrum sharing, (e) safeguard the efficient use of radio spectrum, or (f) ensure the fulfilment of a general interest objective as defined by or on behalf of the Government or a Minister of the Government in accordance with paragraph (7).
(5)Without prejudice to paragraph (7), the Regulator shall ensure that all types of electronic communications services may be provided in the radio spectrum, declared available for electronic communications services in the Radio Frequency Plan published under section 35 of the Act of 2002 in accordance with European Union law.
(6)Notwithstanding paragraph (5), the Regulator may provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including where necessary, to fulfil a requirement under the International Telecommunication Union Radio Regulations.
(7)Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as laid down by or on behalf of the Government or a Minister of the Government in accordance with European Union law including, but not limited to — (a) safety of life, (b) the promotion of social, regional or territorial cohesion, (c) the avoidance of inefficient use of radio spectrum, or (d) the promotion of cultural and linguistic diversity and media pluralism, for example, the provision of radio and television broadcasting services.
(8)The Regulator may only prohibit the provision of any other electronic communications service in a specific radio spectrum frequency band where such a prohibition is justified by the need to protect safety of life services. The Regulator may, on an exceptional basis, extend such a measure in order to fulfil other general interest objectives as laid down by or on behalf of the Government or a Minister of the Government in accordance with European Union law.
(9)The Regulator shall regularly review the necessity of any restrictions imposed under this Regulation and shall make the results of such reviews publicly available.
(10)In the fulfilment of its obligations under this Regulation, the Regulator shall respect relevant international agreements including the International Telecommunication Union Radio Regulations and other agreements adopted in the framework of the ITU applicable to radio spectrum, such as the agreement reached at the Regional Radiocommunications Conference of 2006, and any public policy considerations brought to its attention by the Minister.
Authorisation of use of radio spectrum 28. (1) The Regulator shall facilitate the use of radio spectrum, including shared use, under a general authorisation under these Regulations and limit the granting of individual rights of use for radio spectrum to situations where such rights are necessary to maximise efficient use in light of demand and taking into account the criteria set out in paragraph (2). In all other cases, the Regulator shall set out the conditions for the use of radio spectrum in a general authorisation.
(2)The Regulator may decide to grant individual rights of use for radio spectrum by way of licence taking account of: (a) the specific characteristics of the radio spectrum concerned; (b) the need to protect against harmful interference; (c) the development of reliable conditions for radio spectrum sharing, where appropriate; (d) the need to ensure technical quality of communications or service; (e) objectives of general interest as laid down by or on behalf of the Government or a Minister of the Government in accordance with European Union law; (f) the need to safeguard efficient use of radio spectrum.
(3)When considering whether to issue general authorisations or to grant individual rights of use for the harmonised radio spectrum, taking into account technical implementing measures adopted in accordance with Article 4 of the Radio Spectrum Decision, the Regulator shall seek to minimise problems of harmful interference, including in cases of shared use of radio spectrum on the basis of a combination of general authorisation and individual rights of use.
(4)Where appropriate, the Regulator shall consider the possibility to authorise the use of radio spectrum based on a combination of general authorisation and individual rights of use, taking into account the likely effects of different combinations of general authorisations and individual rights of use and of gradual transfers from one category to the other on competition, innovation and market entry.
(5)The Regulator shall seek to minimise restrictions on the use of radio spectrum by taking appropriate account of technological solutions for managing harmful interference in order to impose the least onerous authorisation regime possible.
(6)When taking a decision in accordance with this Regulation, with a view to facilitating the shared use of radio spectrum, the Regulator shall ensure that the conditions for the shared use of radio spectrum are clearly set out. Such conditions shall facilitate the efficient use of radio spectrum, competition and innovation.
Conditions attached to individual rights of use for radio spectrum 29. (1) The Regulator shall attach conditions to individual rights of use for radio spectrum in accordance with Regulation 9(1) in such a way as to ensure optimal and the most effective and efficient use of radio spectrum.
(2)The Regulator shall, before the assignment or renewal of individual rights of use, clearly establish any conditions attached to those rights, including the level of use required and the possibility to fulfil that requirement through trading or leasing, in order to ensure the implementation of those conditions. Conditions attached to renewals of right of use for radio spectrum shall not provide undue advantages to existing holders of those rights.
(3)Such conditions attached to individual rights of use shall specify the applicable parameters, including any deadline for exercising the rights of use, the non-fulfilment of which would entitle the Regulator to withdraw the right of use or impose other measures.
(4)The Regulator shall, in a timely and transparent manner, consult and inform interested parties regarding conditions attached to individual rights of use before their imposition. The Regulator shall determine in advance and inform interested parties, in a transparent manner, of the criteria for the assessment of the fulfilment of those conditions.
(5)When attaching conditions to individual rights of use for radio spectrum, the Regulator may, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities: (a) sharing passive or active infrastructure which relies on radio spectrum or radio spectrum; (b) commercial roaming access agreements; (c) joint roll-out of infrastructures for the provision of networks or services which rely on the use of radio spectrum.
(6)The Regulator shall not prevent the sharing of radio spectrum in the conditions attached to the rights of use for radio spectrum. Implementation by undertakings of conditions attached pursuant to this paragraph shall remain subject to competition law.
(7)This Regulation is without prejudice to the Act of 1926.
CHAPTER 2
Rights of use Granting of individual rights of use for radio spectrum 30. (1) Where it is necessary to grant individual rights of use for radio spectrum, the Regulator shall grant such rights, upon request, to any undertaking for the provision of electronic communications networks or services under the general authorisation referred to in Regulation 6, subject to — (a) Regulations 9, 36 and 99(1)(c), (b) any applicable provisions of the Act of 1926 or any relevant regulations made under that Act, and (c) any other rules ensuring the efficient use of those resources in accordance with the Directive and these Regulations.
(2)(a) The Regulator shall, having regard to Regulation 27 establish open, objective, transparent, non-discriminatory and proportionate procedures for the granting of individual rights of use for radio spectrum and shall cause any such procedures to be made publicly available. Such procedures shall be without prejudice to specific criteria and procedures for the granting of rights of use for radio spectrum to the providers of radio or television broadcast content services with a view to pursuing general interest objectives as defined by or on behalf of the Government or a Minister of the Government in accordance with European Union law. (b) The Regulator may determine that the procedures referred to in subparagraph (a) will not apply in cases where the granting of rights of use for radio spectrum to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as defined by or on behalf of the Government or a Minister of the Government in conformity with European Union law.
(3)(a) The Regulator shall consider applications for individual rights of use for radio spectrum in the context of selection procedures pursuant to objective, transparent, proportionate and non-discriminatory eligibility criteria that are set out in advance and reflect the conditions to be attached to such rights. (b) The Regulator shall be able to request all necessary information from applicants in order to assess, on the basis of those criteria, their ability to comply with those conditions. (c) Where the Regulator concludes that an applicant does not possess the required ability, it shall provide a duly reasoned decision to that effect.
(4)When granting rights of use for radio spectrum, the Regulator shall, having regard to Regulations 27 and 33, specify whether such rights may be transferred or leased by the holder of the rights and under what conditions such a transfer may take place.
(5)The Regulator shall make any decision on the grant of individual rights of use for radio spectrum as soon as possible after receipt by it of the complete application and in the case of radio spectrum that has been allocated to be used by electronic communications services within the Frequency Plan published under section 35 of the Act of 2002 within 6 weeks after such receipt. That time limit shall be without prejudice to Regulation 36(8) and to any applicable international agreements relating to the use of radio spectrum or of orbital positions.
(6)The Regulator shall communicate a decision referred to in paragraph (5) to an applicant for a right of use referred to in that paragraph as soon as possible after the decision is made and, subject to any restrictions which the Regulator considers appropriate in order to protect the confidentiality of any information which the Regulator considers confidential, make public such a decision as soon as possible after informing the applicant.
(7)For the purpose of this Regulation a general authorisation for the use of radio spectrum shall be facilitated by way of an order made by the Regulator under section 3(6) of the Act of 1926 declaring that a particular class or description of apparatus for wireless telegraphy is one to which the licence requirements of section 3 of the Act of 1926 do not apply.
Duration of rights 31. (1) Rights of use for radio spectrum shall be in force for such period as the Regulator considers appropriate in light of the objectives pursued in accordance with Regulation 36(2) and (3), taking due account of the need to ensure competition, as well as, in particular, effective and efficient use of radio spectrum, and to promote innovation and efficient investments, including by allowing for an appropriate period for investment amortisation.
(2)Where the Regulator decides to grant individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with the Radio Spectrum Decision in order to enable its use for wireless broadband electronic communications services (“wireless broadband services”) for a limited period, it shall ensure regulatory predictability for the holders of the rights over a period of at least 20 years regarding conditions for investment in infrastructure which relies on the use of such radio spectrum, taking account of the requirements referred to in paragraph (1). This Regulation is subject, where relevant, to any modification of the conditions attached to those rights of use in accordance with Regulation 14.
(3)The Regulator shall ensure that the rights of use referred to in paragraph (2) are valid for a duration of at least 15 years and include, where necessary to comply with that paragraph, provision for an adequate extension and under the conditions laid down in paragraphs (4) to (8).
(4)The Regulator shall make available the general criteria for an extension of the duration of rights of use, in a transparent manner, to all interested parties in advance of granting rights of use, as part of the conditions laid down under Regulation 36(4) and (7). Such general criteria shall relate to: (a) the need to ensure the effective and efficient use of the radio spectrum concerned, the objectives pursued in Regulation 27(1)(c)(i) and (ii), or the need to fulfil general interest objectives related to ensuring safety of life, public order, public security or defence; and (b) the need to ensure undistorted competition.
(5)At the latest two years before the expiry of the initial duration of an individual right of use, the Regulator shall conduct an objective and forward-looking assessment of the general criteria laid down for extension of the duration of that right of use in light of Regulation 27(1)(c)(iii). Provided that the Regulator has not initiated an investigation for non-compliance with the conditions of the rights of use, it shall grant the extension of the duration of the right of use unless it concludes that such an extension would not comply with the general criteria laid down in subparagraph (a) or (b) of paragraph (4).
(6)On the basis of the assessment referred to in paragraph (5), the Regulator shall notify the holder of the right as to whether the extension of the duration of the right of use is to be granted. If such an extension is not to be granted, the Regulator shall apply Regulation 30 for granting rights of use for that specific radio spectrum band.
(7)Any measure taken by the Regulator in accordance with paragraphs (2) to (6) shall be proportionate, non-discriminatory, transparent and reasoned.
(8)Notwithstanding Regulation 101, interested parties shall have the opportunity to comment on any draft measure taken by the Regulator in accordance with paragraphs (2) to (7) for a period of at least three months.
(9)The Regulator may derogate from the provisions of paragraphs (2) to (8) where duly justified, in the following cases: (a) in limited geographical areas, where access to high-speed networks is severely deficient or absent and this is necessary to ensure achievement of the objectives of Regulation 27(1); (b) for specific short-term projects; (c) for experimental use; (d) for uses of radio spectrum which, in accordance with Regulation 27(3) to (8), can coexist with wireless broadband services; or (e) for alternative use of radio spectrum in accordance with Regulation 27(2).
(10)The Regulator may adjust the duration of rights of use laid down in this Regulation to ensure the simultaneous expiry of the duration of rights in one or several bands.
Renewal of individual rights of use for harmonised radio spectrum 32. (1) (a) The Regulator may renew individual rights of use for harmonised radio spectrum except where at the time of assignment, the possibility of renewal has been explicitly excluded. (b) A decision by the Regulator in accordance with subparagraph (a) shall be taken in a timely manner, before the duration of the rights expires.
(2)The Regulator shall assess the need for a renewal at its own initiative or upon request by the holder of the right, in the latter case not earlier than five years prior to expiry of the duration of the rights concerned. This shall be without prejudice to renewal clauses applicable to existing rights.
(3)In taking a decision pursuant to paragraph (1) the Regulator shall consider, inter alia: (a) the fulfilment of the objectives set out in Regulations 4, 27(1)(c) and 30(2)(a), as well as public policy objectives under law; (b) the implementation of a technical implementing measure adopted in accordance with Article 4 of the Radio Spectrum Decision; (c) the review of the appropriate implementation of the conditions attached to the right concerned; (d) the need to promote, or avoid any distortion of, competition in line with Regulation 34; (e) the need to render the use of radio spectrum more efficient in light of technological or market evolution; (f) the need to avoid severe service disruption.
(4)(a) When considering possible renewal of individual rights of use for harmonised radio spectrum for which the number of rights of use is limited pursuant to paragraph (3), the Regulator shall conduct an open, transparent and non-discriminatory procedure, and shall, inter alia: (i) give all interested parties the opportunity to express their views through a public consultation in accordance with Regulation 101; and (ii) clearly state the reasons for such possible renewal. (b) The Regulator shall take into account any evidence arising from the consultation pursuant to subparagraph (a) of market demand from undertakings other than those holding rights of use for radio spectrum in the band concerned when deciding whether to renew the rights of use or to organise a new selection procedure in order to grant the rights of use pursuant to Regulation 36.
(5)A decision by the Regulator to renew the individual rights of use for harmonised radio spectrum may be accompanied by a review of the fees as well as of the other terms and conditions attached thereto. Where appropriate, the Regulator may adjust the fees for the rights of use in accordance with Regulation 24.
Transfer or lease of individual rights of use for radio spectrum 33. (1) The Regulator shall ensure that undertakings may transfer or lease to other undertakings, individual rights of use for radio spectrum.
(2)Where an individual right of use for radio spectrum was initially obtained by an undertaking free of charge or assigned for broadcasting, the Regulator may, with the consent of the Minister, determine that paragraph (1) does not apply.
(3)An undertaking intending to transfer or lease rights of use for radio spectrum shall notify the Regulator of its intention to do so and of the effective transfer of the rights. The notification shall be in accordance with procedures specified by the Regulator. The Regulator shall ensure that such notifications are made public. In the case of harmonised radio spectrum, any such transfer shall comply with such harmonised use.
(4)Where the original conditions attached to the rights of use for radio spectrum are maintained, the Regulator shall allow the transfer or lease of those rights. Without prejudice to the need to ensure the absence of a distortion of competition, in particular in accordance with Regulation 34, the Regulator shall: (a) submit transfers and leases to the least onerous procedure possible; (b) not refuse the lease of rights of use for radio spectrum where the lessor undertakes to remain liable for meeting the original conditions attached to the rights of use; (c) not refuse the transfer of rights of use for radio spectrum unless there is a clear risk that the new holder is unable to meet the original conditions for the right of use.
(5)Any administrative charge imposed by the Regulator on undertakings in connection with processing an application for the transfer or lease of rights of use for radio spectrum shall comply with Article 16 of the Directive.
(6)Subparagraphs (a), (b) and (c) of paragraph (4) are without prejudice to the Regulator’s competence to enforce compliance with the conditions attached to the rights of use at any time, both with regard to the lessor and the lessee, in accordance with law.
(7)The Regulator shall facilitate the transfer or lease of rights of use for radio spectrum by giving consideration to any request to adapt the conditions attached to the rights in a timely manner and by ensuring that those rights or the relevant radio spectrum may to the best extent be partitioned or disaggregated.
(8)In light of any transfer or lease of rights of use for radio spectrum, the Regulator shall make relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights are created and keep those details for as long as the rights exist.
(9)Where radio spectrum use has been harmonised through the application of the Radio Spectrum Decision or other European Union measures, a transfer of rights to use radio spectrum shall comply with such harmonised use.
Competition 34. (1) The Regulator shall promote effective competition and avoid distortions of competition in the internal market when deciding to grant, amend or renew rights of use for radio spectrum for electronic communications networks and services in accordance with these Regulations.
(2)When the Regulator decides to grant, amend or renew rights of use for radio spectrum, it may take appropriate measures such as: (a) limiting the amount of radio spectrum bands for which rights of use are granted to any undertaking, or, in justified circumstances, attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics; (b) reserving, if appropriate and justified with regard to a specific situation in the national market, a certain part of a radio spectrum band or group of bands for assignment to new entrants; (c) refusing to grant new rights of use for radio spectrum or to allow new radio spectrum uses in certain bands, or attaching conditions to the grant of new rights of use for radio spectrum or to the authorisation of new uses of radio spectrum, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use; (d) including conditions prohibiting, or imposing conditions on, transfers of rights of use for radio spectrum, not subject to European Union or national merger control, where such transfers are likely to result in significant harm to competition; (e) amending the existing rights in accordance with the Directive where this is necessary to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum.
(3)When taking any measure referred to in paragraph (2) the Regulator shall, taking into account market conditions and available benchmarks, base its decisions on an objective and forward-looking assessment of: (a) the market competitive conditions, (b) whether such measures are necessary to maintain or achieve effective competition, and, (c) the likely effects of such measures on existing and future investments by market participants in particular for network roll-out.
In doing so, it shall take into account the approach to market analysis as set out in Regulation 49(5).
(4)When taking any decision or measure referred to in paragraph (2) the Regulator shall act in accordance with the procedures provided for in Regulations 14, 15, 19 and 101.
(5)For the purpose of this Regulation a general authorisation for the use of radio spectrum shall be facilitated by way of an order made by the Regulator under section 3(6) of the Act of 1926 declaring that a particular class or description of apparatus for wireless telegraphy is one to which the licence requirements of section 3 of the Act of 1926 do not apply.
CHAPTER 3
Procedures Coordinated timing of assignments 35. (1) The Regulator, having regard to its objectives under section 12 of the Act of 2002 and Regulation 4, and having notified the Minister, shall cooperate with the relevant authority in another Member State as appropriate in order to coordinate the use of harmonised radio spectrum for electronic communications networks and services in the Union taking due account of the different national market situations.
(2)The coordinated use of harmonised radio spectrum referred to in paragraph (1) may include identifying one, or, where appropriate, several common dates by which the use of specific harmonised radio spectrum is to be authorised.
(3)Where harmonised conditions have been set by technical implementing measures in accordance with the Radio Spectrum Decision in order to enable the radio spectrum use for wireless broadband networks and services, the Regulator shall allow the use of that radio spectrum, as soon as possible and at the latest 30 months after the adoption of the measure, or as soon as possible after the lifting of any decision to allow alternative use on an exceptional basis pursuant to Regulation 27(2).
(4)The Regulator may delay the deadline provided for in paragraph (3) for a specific band under the following circumstances: (a) to the extent justified by a restriction to the use of that band based on the general interest objective provided in point (a) or (d) of Regulation 27(7); (b) in the case of unresolved cross-border coordination issues resulting in harmful interference with third countries, provided the affected Member State has, where appropriate, requested European Union assistance pursuant to Article 28(5) of the Directive; (c) safeguarding national security and defence; or (d) force majeure.
Any delay in accordance with this paragraph shall be reviewed by the Regulator at least every two years.
(5)The Regulator may delay the deadline provided for in paragraph (3) for a specific band to the extent necessary and up to 30 months in the case of: (a) unresolved cross-border coordination issues resulting in harmful interference between the State and another Member State, provided that the affected Member State takes all necessary measures in a timely manner pursuant to Regulation 16(3) and (4); (b) the need to ensure, and the complexity of ensuring, the technical migration of existing users of that band.
(6)In the event of a delay under paragraph (4) or (5), the Regulator shall notify the Minister.
Procedure for limiting number of rights of use to be granted for radio spectrum 36. (1) Without prejudice to Regulation 35, where the Regulator concludes that a right to use radio spectrum cannot be subject to a general authorisation and where it considers whether to limit the number of rights of use to be granted for radio spectrum, it shall, inter alia, without prejudice to sections 13 and 37 of the Act of 2002: (a) clearly state the reasons for limiting the rights of use, in particular by giving due weight to the need to maximise benefits for users and to facilitate the development of competition and review the limitation at intervals which it considers reasonable or at the reasonable request of any undertaking affected as appropriate; (b) give all interested parties, including users and consumers, the opportunity to express their views on any limitation in accordance with Regulation 101.
(2)(a) The Regulator may decide, having taken into account the matters referred to in paragraph (1)(a) and (b), that the number of rights of use for radio spectrum referred to in that paragraph ought to be limited and, where the Regulator so decides, it shall clearly establish, and give reasons for, the objectives pursued by means of a competitive or comparative selection procedure under this Regulation, and where possible quantify them, giving due weight to the need to fulfil national and internal market objectives. (b) The objectives that the Regulator may set out with a view to designing the specific selection procedure shall, in addition to promoting competition, be limited to one or more of the following: (i) promoting coverage; (ii) ensuring the required quality of service; (iii) promoting efficient use of radio spectrum, including by taking into account the conditions attached to the rights of use and the level of fees; (iv) promoting innovation and business development.
(3)The Regulator shall clearly define and justify the choice of the selection procedure, including any preliminary phase to access the selection procedure. It shall also clearly state the outcome of any related assessment of the competitive, technical and economic situation of the market and provide reasons for the possible use and choice of measures pursuant to Regulation 19.
(4)The Regulator shall cause to be published in such form as the Regulator may determine: (a) any decision on the selection procedure chosen and the related rules, clearly stating the reasons therefor, and (b) the conditions that are to be attached to the rights of use.
(5)Following the determination of the selection procedure, the Regulator shall invite applications for rights of use.
(6)Without prejudice to sections 13 and 37 of the Act of 2002, where the Regulator concludes that additional rights of use for radio spectrum or a combination of general authorisation and individual rights of use can be granted, it shall publish that conclusion, in such form as it may determine, and invite applications for the of granting of such rights of use.
(7)Where the granting of rights of use for radio spectrum needs to be limited, the Regulator shall grant such rights on the basis of selection criteria and a selection procedure which are objective, transparent, non-discriminatory and proportionate. Any such selection criteria shall give due weight to the achievement of the objectives and requirements of section 12 of the Act of 2002 and Regulations 4, 16 and 27.
(8)Where the Regulator decides to use a competitive or comparative selection procedure for the purpose of granting rights of use for radio spectrum, the Regulator may extend the maximum period of 6 weeks referred to in Regulation 30(5) for as long as is necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than 8 months, subject to any specific timetable established pursuant to Regulation 35.
(9)The time limits referred to in paragraph (8) shall be without prejudice to any applicable international agreements relating to the use of radio spectrum and satellite coordination.
(10)This Regulation is without prejudice to the transfer of rights of use for radio spectrum in accordance with Regulation 33.
Publication of specification of conditions 37. (1) Subject to the need to protect commercial confidentiality, the Regulator shall cause to be published in Iris Oifigiúil and on its website, notice of the specification of conditions under Regulations 8, 9 and 10 and a determination under Regulation 6(3), 9(1) or 10(1). The notice shall include information on where copies of the specification of conditions or determination can be obtained.
(2)Where the Regulator amends or revokes any such specification of conditions or determinations in accordance with Regulation 14 or any such determination, paragraph (1) applies accordingly.
Part 7
DEPLOYMENT AND USE OF WIRELESS NETWORK EQUIPMENT Access to radio local area networks 38. (1) The Regulator shall allow the provision of access through RLANs to a public electronic communications network and the use of harmonised radio spectrum for that provision, subject only to applicable general authorisation conditions relating to radio spectrum use as referred to in Regulation 28(1).
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.